Why Gun Control Supporters Are Desperate to Dismiss New York State Rifle & Pistol Assn v City of New York

Brett M. Kavanaugh Supreme Court

Supreme Court Associate Justice Brett Kavanaugh (Jabin Botsford/The Washington Post via AP, Pool)

The quote of the day is presented by Guns.com

Note that in his explainer on the importance of the New York State Rifle & Pistol Association v. New York case, Vox’s Ian Millhiser describes New York City’s ban on traveling outside of city limits with licensed firearms as a “minimal burden” on gun owners, covering conduct outside the Second Amendment’s “core.”

Because the freedom to transport a legally owned firearm outside of your home, city, or state is apparently not always justified.

That “minimal burden” is why anti-gunners are so afraid of an adverse outcome in the Supreme Court case, potentially expanding the scope of Second Amendment rights and putting an end to the RKBA being treated as a second-class right.

The Court will discuss the mootness argument next week. If they don’t dismiss the case, arguments are scheduled for December 2.

At least 10 (lower) courts apply what United States Court of Appeals for the Fifth Circuit Judge Stephen Higginson describes as a “two-step analytic framework” (to Second Amendment cases). Under this framework, “severe burdens on core Second Amendment rights” are subject to “strict scrutiny,” the most skeptical level of review that courts typically apply in constitutional cases. “Less onerous laws, or laws that govern conduct outside of the Second Amendment’s ‘core,’” are subject to a more permissive test known as “intermediate scrutiny.”

Thus, major burdens on gun owners are especially likely to be struck down, while less consequential burdens are more likely to be upheld.

Kavanaugh, for his part, rejects this consensus framework altogether. In his 2011 dissent, he argued that the consensus view should be abandoned for a different test — “courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” While it’s unclear how Kavanaugh’s test would apply in every individual case, the fact that Kavanaugh took a position well to the right of his two Republican colleagues strongly suggests that his test would invalidate more gun laws than would the consensus framework.

New York State Rifle, moreover, offers someone like Kavanaugh the perfect vehicle to upend the consensus framework because the (now repealed) rule at the heart of this case imposes only a minimal burden on gun owners.

New York offers two kinds of handgun licenses. A “carry” license permits gun owners to carry a handgun for “target practice, hunting, or self-defense.” Meanwhile, a less permissive “premises” license permits a gun owner to “have and possess in his dwelling” a handgun. Premises license holders, however, may only bring the gun outside of their home for limited reasons, which include bringing the gun to seven specific gun ranges to practice shooting.

The plaintiffs in New York State Rifle, each of whom has a premises license, raise a very narrow challenge to this framework. As a federal appeals court explained, some of them “seek to transport their handguns to shooting ranges and competitions outside New York City.” One of them also owns two homes, and he wishes to be able to transport one gun between those two homes.

New York State Rifle, in other words, involves what Judge Higginson described as a “less onerous law” that governs “conduct outside of the Second Amendment’s ‘core.’” This isn’t a grand showdown over when and where people can carry guns — or whether they bring a gun into their own home. It’s a small legal dispute about little more than whether lawmakers can require certain gun owners to practice shooting at certain specified gun ranges.

And yet, this very smallness is what makes New York State Rifle so dangerous to the consensus framework. The rule at the heart of this case is the very sort of gun restriction that the consensus framework is likely to treat as insignificant. And that gives the Supreme Court an ideal vehicle to hold that judges should treat all gun laws with skepticism — even very minor ones.

– Ian Millhiser in The biggest Second Amendment case to reach the Supreme Court in nearly a decade, explained

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comments

  1. avatar Kyle says:

    Wow, that was a Vox article.

    They must have really hated putting that one together.

    1. avatar Serpent_Vision says:

      Not really. Much of the article is on why the case should be viewed as moot and only extreme activism could lead the Court to take it up (because there’s no possible way that the state and city could just conspire to change the law back if the case were dismissed).

      1. avatar Mark N. says:

        Ahem, this is not a news article, but an opinion piece that is very much in favor of the avoidance of Supreme Court review to avoid the possibility of an expansion of 2A rights, i.e., exactly what NYC and NYS fear the most. The article is extremely misleading both as to the scope of Heller, the dramatic impact of McDonald, and the real holding of Miller v. U.S..
        This last case is rather mysterious, in that you can read it for pretty much any proposition you want, because the point if the decision was not to discuss 2A rights per se, but to uphold the NFA. Language in the decision can be read as suggesting that the 2A is a collective right, which is the position of the National ACLU and its NY chapter, but can also be read as upholding an individual right–but all of that was dicta because it was not central to deciding whether the government had the authority to outlaw sawed off shotguns. Ultimately, the court held that such a weapon was NOT generally useful for militia(i.e. MILITARY) purposes,, and fell within the definition of “dangerous and unusual.” (Parenthetically, Miller CAN be read as holding that MILITARY weapons most useful to service by the militia ARE within the protection of the 2A–funny how these anti-gunners never mention that their favorite case would overrule AR bans.)

        The author does NOT give a very clear explanation of the NYC law being challenged, merely concludes that preventing people from taking their firearms out of their homes except to go to a gun shop or a range, of which only 7 exist in NYC, and more onerously, taking their firearms out of the city FOR ANY REASON, is only a “minor”impediment to the right. Really? In addition, he does not mention that this is the most common license issued in the City, and that concealed carry licenses are as common as unicorns. Which really means that everyone except concealed carry licensees are subject to the law, literally millions of New Yorkers, and that the City produced not one shred of evidenced that its ordinance actually reduced crime and was necessary for public safety.

        1. avatar Serpent_Vision says:

          I think if you review US v. Miller, you’ll see that they did not find that SBSs were not useful for the militia, they merely declined to hold that they were, absent evidence and testimony (Mr. Miller having inconveniently gotten himself killed prior to the hearing).

    2. avatar SoCalJack says:

      Suposedly Vox is slightly left leaning, but take this chart with a grain of salt (chart at bottom of page):
      https://www.adfontesmedia.com/the-chart-version-3-0-what-exactly-are-we-reading/

      1. avatar Dude says:

        A chart about bias that is heavily biased.

        1. avatar Rattlerjake says:

          That chart is equivalent to the congressperson who claimed that AR15’s a 50 caliber. Why do we, as a civilization, not have a system in place that removes bogus information and blatant lies from ALL media sources? There is far too much misinformation, especially the misinformation that has been proven to be BS, that is influential in keeping a large segment of our population stupid!

        2. avatar Huntmaster says:

          Who would you like to develop and manage that system?

        3. avatar EndDangerEd says:

          That system has already been created by George Soros and Google, but it often does just the opposite as it confirms LIES and HIDES TRUTH… but of course DEMwits can’t SEE that through their TDS.

      2. avatar Ragnar says:

        “Suposedly Vox is slightly left leaning, …”

        So left leaning, they would fall over if they didn’t have Disney Corp. and Soros propping them up.

        1. avatar James Campbell says:

          Well stated. Vox is about as FAR left at you can get.

  2. avatar Merle 0 says:

    And this is exactly why Kavannaugh is such a big target of the left.

    1. avatar Karl says:

      He has a long memory.

      1. avatar Dude says:

        Karma’s a bitch.

  3. avatar Baldwin says:

    The RKBA shall not be infringed…except for this…and that….and that over there….oh, yeah, and this too…etc…etc…etc

    1. avatar Someone says:

      I must have missed the latter part in my copy of BoR.

      1. avatar Scott says:

        It’s written in special invisible ink that only leftist judges can see.

  4. avatar Jim Bullock says:

    Well, in among the nonsense – fisking that would take all day – the anti’s agenda slipped out.

    – laws don’t mean what they say, but how they’ve been interpreted … by judges (or A Gs) … lately
    – you may do what you are permitted; what they’ve named, not do what you choose; restrictions are named
    – you need a reason; they don’t
    – NYC has jurisdiction over the whole world, it seems, telling you what you can’t do in everywhere else.

    That’s how they want to us to play now: directed digits of the leviathan, not people living under some common rules, agreed so we can each live our own way better.

  5. avatar doesky2 says:

    Now days leftist cities and states just straight up ignore SCOTUS rulings they don’t like.
    That’s how fascists rule (and roll).
    They just make minor tweaks to their laws and enforce that until that law takes 5-10 years to get struck down.
    There never is any prison time or negative consequences for the fascists who make these unconstituional laws.
    Eagerly awaitig CW2.

  6. avatar Model 31 says:

    No doubt Roberts loves him some consensus framework.
    Where are levels of scrutiny established and defined in the Constitution?

  7. avatar M1Lou says:

    Keep and bear. It doesn’t mention that you can only keep. If I can’t leave my house armed, then I am being prevented from bearing arms. It’s very simple, but the anti-gun nutters don’t care. Ban and destroy at all costs is their goal.

    1. avatar ex-exec says:

      This is why I can not travel west or south of Massachusetts, it is time to pass universal carry in all states.

      1. avatar Mark N. says:

        You can, as long as your firearms are unloaded and in locked containers. And best to put them in the trunk, because gun cases int he back seat always draw extreme scrutiny if you get pulled over. Theoretically, FOPA will protect you, but be careful in NY, NJ, and Maryland, which love to ignore the federal statute, even though they know a judge will apply it–but that will cost you time and money. In short, they do it to harass gun owners.

        1. avatar James Campbell says:

          That’s why I left the NY/NJ area in the early ’90s.
          I was pulled over driving from Texas to Florida in March (to see my two sons, shoot, catch the Sebring 12 HR endurance race), was pulled over in LA (speeding) handed the LEO my Texas DL and Texas LTC, was asked if I had any firearms in my car, told him I have SEVEN. All but one were in Explorer pistol cases, on the passenger seat were four cases, a Walther P5, Walther P5 Lang, H&K P7 M13, Wilson Combat 92G Brig Tac, on the floor in front of seat were two cases, a Sig Sauer P6, stainless/ported 50AE DEagle, six large ammo cases in the back floor areas had ammo out the wazoo for all of them. I had a Walther PPQ 45 in a cross draw on myself. The officer and I spoke gun for a while, he let me go with a warning for speeding. If that pull over was in the NE US, I would be arrested and guns/ammo confiscated.

  8. avatar LifeSavor says:

    That the author categorizes the restrictions on the premises license as a minor burden illustrates how people who are anti-gun know nothing about responsible gun ownership.

    Likely the NYSR&PA will win this suit, hopefully with strict scrutiny. However, nation-wide we will win by bringing our family and friends and even casual acquaintances to the range. The more they know and experience, the less likely they will be fooled by dis-information sources such as VOX.

  9. avatar Missouri_Mule says:

    I just got back (last weekend) from the 34th annual Gun Rights Policy Conference sponsored by the 2nd amendment Foundation in Phoenix, AZ.

    The events and discussions there made it clear the next big issue is the RIGHT TO BEAR.

    1. avatar LifeSavor says:

      Sounds like an interesting conference. Are you saying the next big threat will be against carrying? I wonder if that implies a recognition that the war against ownership is failing.

  10. avatar Missouri_Mule says:

    I am sure not being able to take firearms from Lexington to Concord would have only been a minor inconvenience…

  11. avatar Rubiconcrossed says:

    Al Hoffman REPUBLICAN has donated $250,000 in Florida for a complete ban on semi-auto rifles and pistols. He has sponsored an anti-gun group called “Americans for Gun Safety”. NOT all Republicans are our friends and some Democrats ARE our friends so keep that in mind when you vote. For a list of ratings see the NRA list.

    https://www.msn.com/en-us/news/us/in-florida-push-for-strict-new-gun-ban/ar-AAHYPds?li=BBnb7Kz&ocid=U143DHP

    1. avatar Matthew says:

      Just realized I’m starting to have doubts about even the NRA’s list. Cause I’m not sure I count them as supportive of gun rights. Why should I trust their list?

  12. avatar TFred says:

    The bias is strong in this one (the Vox article.)

    Just some low-hanging fruit:

    “It is important because the Supreme Court’s current majority is likely to expand the scope of the Second Amendment significantly if they decide the merits of this case.”

    Not even close. This case is about reigning in the rogue Circuit Courts’ blatantly thumbing their collective noses at Heller and McDonald. This case is about stopping these lower courts from INFRINGING on the Second Amendment.

    “Should the Supreme Court move forward with the case, it will only add to fears — including fears that were recently raised by Justice Sonia Sotomayor — that the Court is bending the rules in order to achieve conservative outcomes.”

    Again, not even close. There is clear precedent for the court to keep a case when the defendants have taken action that is obviously intended to avoid an undesirable ruling. Nobody believes that NYC or the State of New York have suddenly “seen the light” on these infringements.

    If SCOTUS dismisses this case, the obvious result will be that every gun-hating jurisdiction in the country will have a new play book. Infringe as much as you want, enjoy that infringement for a decade or more as the case (assuming a plaintiff has deep pockets) fights up the line to SCOTUS, then if SCOTUS takes the case, quickly repeal your infringements. The only variable left in this game is how long does it take NYC and the State of New York to reimpose these same (or worse) infringements again?

    1. avatar TFred says:

      And more, utter hogwash:

      “Heller suggests that “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” all remain valid…”

      While this quote is technically correct, the implication is false. Heller provided us with what I suppose is the most misunderstood and butchered footnote in the history of the Supreme Court.

      Scalia’s footnote says, “We identify these presumptively lawful regulatory measures only
      as examples; our list does not purport to be exhaustive.”

      PRESUMPTIVELY is the key word here. Heller did not address these restrictions, they were out of the scope of the merits of the case. It would have been very unusual for Heller to expand its scope to address laws that were not part of the case. Scalia basically had to assume those existing restrictions were lawful, simply because there was no reason for him not to. It was essentially an invitation for the lower courts to begin to evaluate these other restrictions, which they have done.

      With unpredictable Kennedy on the court, the originalist justices declined to take a case, for fear that Kennedy would sell out. A loss on these restrictions at this level would be devastating. Now that Kennedy is gone, we finally have a chance to continue the job that Heller started: bringing the nation back in line with the original intent of the Second Amendment.

      1. avatar CatmBeretta says:

        Permit for a gun in the home? Better hide the power tools. Thank God for Texas.

    2. avatar Serpent_Vision says:

      Since it’s pretty clear that the city and state conspired here to moot the case, the claim in the Vox article that the city is now helpless to reinstate it because the state prohibits them is laughable. Apparently, the Supreme Court can see through the scheme, even if Vox chooses not to.

      1. avatar Mark N. says:

        Particularly as it is patently obvious 1) that the City asked the state to pass the law for the purpose of mooting the case, and 2) if NYC did not want the state law, it would not have passed because NYC pretty ,much controls the legislature. Note worthy int his context is that NYC has a carve out exempting it from the NYS laws applicable elsewhere when it comes to guns.

  13. avatar Green Mtn. Boy says:

    “Because the freedom to transport a legally owned firearm outside of your home, city, or state is always justified.” FIFY

    The Marxist totalitarians are going to take it in the shorts and lose and there goes their gun control scam,poor little hurt feelz of the Leftards .

  14. avatar Jay in Florida says:

    Its the “little” laws like this one that made me leave NYC in 1991. Also and its rarely mentioned anywhere. NYC makes you register your long arms too. That was the straw that broke me. That law was passed in 1989. For 2 years I said screw you and did not register any of my rifles.
    Its about time that the courts take on such little laws. Strict scrutiny must be used in every law that pertains to a Constitutional right.
    This is the courts one chance to show that law takes precedence over “feelings”.
    I pray that the Courts do the right thing even Roberts and force strict scrutiny on every law past and present in the gun world..
    Its way past time to make the lower courts do the right thing and follow what the 2nd says. Not how one”feels” about the law.

  15. avatar enuf says:

    “Why Gun Control Supporters Are Desperate to Dismiss New York State Rifle & Pistol Assn v City of New York”

    Because the odds are against them.

  16. avatar Ranger Rick says:

    ☝️Bingo!!

  17. avatar strych9 says:

    I don’t even really see this as a 2A case.

    To me the core of all of this is NYC claiming it’s jurisdiction in this particular matter extends outside the boundaries of NYC. It’s legal to transport the gun around inside the city but you dare not step out of the city, that is, out of the city’s jurisdiction?

    How exactly does NYC claim the right to regulate the transport of a firearm in Albany, Kalamazoo or Miami just because the owner of said firearm(s) has a dwelling in NYC?

    1. avatar Mark N. says:

      Agreed, except for the caveat that the ordinance only allowed premises licensees to transport their firearms to and from a range, or to and from a gun smith/store. Stuff it in your trunk and just drive around so that it is available to you is a violation of the law. I think it is/was illegal to transport between your house and your business–you had to have separate guns for each location, just like you had to have a separate gun for a separate residence..

  18. avatar Robert Messmer says:

    Not being a lawyer I do not understand how New York City saying you can not bear your weapons is not at the core of the 2nd amendment. Seems to me the core of the amendment is “keep and bear arms shall not be infringed.” Since it says “keep AND bear” seems like they meant it as a single action. You own weapons and you carry weapons – when you want, where you want, and how you want.

    1. avatar Jay in Florida says:

      Not according to the Sullivan Act. That POS law written back in the early 20th century was just to keep the dirty unwashed Little people. Mainly Italian mobsters from getting a gun. It was written for no other reason then to keep the unwashed from having a gun. How the state allowed it back then I don’t know. I honestly never have bothered to study it. But NYCs control over the whole state started back then.

      1. avatar Hannibal and the Elephants says:

        Read the history of the Sullivan Act, and tell me that “gun control” is not a racist invention for mobsters to control others. https://en.m.wikipedia.org/wiki/Sullivan_Act

  19. nys does not offer any pistol permits , municipalities do and they offer carry for upstate residents, premise for the city and target/hunting for long island. unless you are an armed guard or business owner ( and he must still prove he needs it). federal judges have been kicking out bans against nunchucks and gravity knives but don’t seem to think that joe/jane citizen carrying a gun for protection is a right. they don’t understand not being able to and that safe act , are both unconstitutional and violates our 2nd amendment rights. and someone has to sue the state and municipalities in order to get that changed.

  20. now how about the nysrpa and the nra sue over the violation of our 2nd a rights because we only get either a premise permit or a target shooting permit, and that is after a wait time of 6 months or more on long island and much longer in nyc? everyone should have the right to carry a gun for protection outside of their home. remember Heller?

    1. avatar Mark N. says:

      Technically, Heller was about “keep,” not bear, and the SCOTUS has yet to hear a “bear” case. It does, however include language that “bear” is a right separate from “keep.”

  21. avatar GS650G says:

    They always refer to the scope of the 2nd as if it’s another living variable .

  22. avatar Ing says:

    Vox says “It’s a small legal dispute about little more than whether lawmakers can require certain gun owners to practice shooting at certain specified gun ranges.”

    In reality, it’s about “whether lawmakers can require NEARLY ALL gun owners IN THE NATION’S LARGEST CITY to practice shooting ONLY at certain specified gun ranges INSIDE THE CITY AND NOWHERE ELSE.”

    Fixed it. Because words mean things, and if you’re going to pretend to explain something, you had damn well better get it right.

    1. avatar Serpent_Vision says:

      But, if they characterized it accurately, their readers might not see it as such a small legal dispute as the author frames it.

  23. avatar Mark H says:

    Roberts really loves him some consensus when he can get it.

    I expect 7:2 to overturn the law. It does not pass ANY basis of scrutiny, so it will be decided on the least burdensome to the government, i.e. rational basis. Breyer and Kagan will join, and by applying rational basis there will be no precedent.

    Thomas will of course write a separate concurrence lamenting that the 2nd is being treated as a 2nd class right.

    This is not the case we are looking for.

    1. avatar imraged at roberts says:

      Roberts was in the majority for both Heller and Mcdonald, so there is that……just because he is not extremely right wing doesn’t mean, especially with past votes, that he does not support 2a decisions.

      Think a little bit and take off the tin hat.

  24. avatar Hannibal says:

    The national gun control movement has enough clever people in there somewhere that they understand how ridiculous laws like this end up making big waves. It’s a pointless law that begs for judicial review and they know it won’t stand, so there’s no use defending it- they just want to sweep it under the rug and make another equally pointless law, each one standing just long enough for the courts to start looking at it. It takes years, though, and that’s what they’re counting on. I hope SCOTUS calls their bluff but it may be a fool’s hope.

  25. avatar nothing is moot here says:

    NYC: look we changed the law now you have now reason to hear the case.

    Meanwhile in NYC: “The expansion of the waiting period was among a half-dozen gun bills the Democrat-led Legislature approved in January” 2019.

    So they invalidated the law that is under SC review and made a half dozen more gun control laws during the same time period, but the still argue the case has been mooted. Good luck with the SC not seeing through this. I look forward to arguments on 12-2.

  26. avatar Alan says:

    If The Court rules as it obviously should, ruling broadly, rather than ruling on the basis of a comma or semi-colon as it has done in the past, the anti gun, anti rights cabal that has long held sway in New York might well be on it’s way to loosing it’s hind end, a fate it long since have suffered, but has managed to avoid.

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